Bulger lawyers battle over prosecution’s request to run criminal record check of jurors

As with many issues in the James “Whitey” Bulger case, the prosecution and defense have agreed to disagree on whether the government can run criminal background checks on potential jurors.

Prosecutor Zachary R. Hafer wrote in a May 16 motion that there is plenty of precedent for his request, which he says is necessary to ensure that a fair, impartial and “statutorily eligible jury is selected.”

“As the Court is aware, trial of this matter will likely take several months, consume considerable resources, and have an obvious emotional impact on the victims,” he wrote. “It is thus important to take steps necessary to address potential appellate issues in the first instance.”

Under 28 U.S.C. §1865(b)(5), a person with pending criminal charges, or state or federal convictions for crimes punishable by imprisonment for more than one year, cannot serve on a federal jury.

Hafer said that numerous other circuit courts of appeal have tackled the question and concluded that prosecutors can run such checks, even without the prior approval of the trial judge. He said it is debatable whether his office needs U.S. District Court Judge Denise J. Casper’s blessing. But in an abundance of caution, he said, the government opted to bring the matter to her attention.

“Consistent with the statute, the First Circuit has found that criminal background checks of jurors by the government in criminal cases … are appropriate,” Hafer said.

In the death penalty case of Gary Lee Sampson, Hafer said, U.S District Court Judge Mark L. Wolf had to set aside the verdict eight years after the jury decided that Sampson should be put to death, due to a juror’s failure to disclose certain information about the juror’s criminal history.

“That juror’s failure to disclose certain information occurred despite the fact that the juror had completed the jury questionnaire in Sampson under oath,” Hafer said. “Regardless of whether the First Circuit affirms or reverses the district court in Sampson, the litigation has consumed thousands of hours at a substantial financial cost. “

The prosecutor noted that state law also supports his request, as criminal background checks are authorized by G.L.c. 234A, §33. In 2007, the Supreme Judicial Court allowed inquiries in the backgrounds of jurors in Commonwealth v. Cousin.

Bulger’s lawyers, J.W. Carney Jr. and Hank B. Brennan, countered in a filing this morning that there is no applicable federal statute mandating verification of a juror’s criminal history.

“Had Congress intended for courts to corroborate a juror’s disclosure about their criminal history, a provision would have been written into the statute that grants the authority to do so,” they wrote.

Although the 1st Circuit case cited by Hafer authorized the government’s actions, Carney and Brennan argue that the background check was made after the court received information that a particular juror was not participating in deliberations. They also said the facts in Sampson are clearly distinguishable.

“Here, the government is requesting background checks of potential jurors that have not posed any prior issues or indicated any deceitful behavior,” they wrote. “Furthermore, these criminal background checks would be conducted with the knowledge of potential jurors who may experience this intrusion as a harassing investigation.”

Carney and Brennan wrote that a person’s criminal record is no more relevant to his or her fitness to serve on a jury than any of the other factors the court considers.

“The possibility of a juror providing a false answer exists for every question posed to the juror,” they said. “If the Court mandates that the juror’s answer as to their criminal background be verified, then should the Court not also verify the juror’s answers to the many other inquiries posed during the voir dire process? This type of intensive investigation would be both inefficient and unnecessary.”

It is unclear whether Casper will decide the motion on the papers or conduct a hearing.